BVA9500966
DOCKET NO. 93-06 637 ) DATE
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On appeal from the decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in Los
Angeles, California
THE ISSUE
Entitlement to an effective date prior to August 1, 1990, for the
assignment of dependency and indemnity compensation benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Ripley P. Schoenberger, Counsel
REMAND
The veteran had verified active duty from February 1935 to
December 1937 and from April 1944 to October 1945.
The appellant contends that she applied for death benefits in
February 1989 and, therefore, should be paid death benefits from
that date.
The evidence shows that the veteran died on January [redacted] 1989. In
February 1989 an application for burial benefits was received at
the RO. In the statement of the case, the RO indicated that, in
accordance with the provisions of 38 C.F.R. § 3.155, the
appellant's February 1989 application for burial benefits had
been accepted as an informal claim for dependency and indemnity
compensation and that the widow was sent an application for
dependency and indemnity compensation (VA Form 21-534) in
February 1989. However, the basis for this statement is not
clear to the Board.
To ensure that the VA has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure full
compliance with due process requirements, the case is REMANDED to
the RO for the following development:
1. The RO should review the claims folder
in order to show that the appellant in this
case was sent an application for dependency
and indemnity compensation in February
1989. The basis for the determination that
she was sent such an application should be
set forth in written form. All supporting
documentation should be submitted for
review.
2. After the development requested above
has been completed, the RO should again
review the record. If any benefit sought
on appeal remains denied, the appellant and
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board for the
purpose of appellate disposition, if in order. The Board
intimates no opinion as to the ultimate outcome of this case.
The appellant need take no action unless otherwise notified.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).